R v Elmer (a pseudonym)

[2025] NSWDC 390

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Elmer (a pseudonym) [2025] NSWDC 390

Hearing dates:

8 August 2025

Date of orders:

8 August 2025

Decision date:

08 August 2025

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment of 8 years with a non-parole period of 5 years

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child >10 <14 — Circumstances of aggravation

CRIME — Child sex offences — Indecent assault — Circumstances of aggravation

CRIME — Child sex offences — Incite act of indecency child — Circumstances of aggravation

SENTENCING — Mitigating factors — Prior good character

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Delay — Maximum penalty — Objective seriousness

SENTENCING — Sentencing procedure — Sentence after trial — No evidence to support a conviction on one count — No power to stay proceedings after a jury verdict — No power to reject jury guilty — No facts to sentence for on count — Only remedy s 10 Crimes (Sentencing Procedure) Act 1999 (NSW) disposition

SENTENCING — Subjective considerations on sentence — Drug use and mental health decline after the commission of offences

Legislation Cited:

Bail Act 2013 (NSW)

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Clarkson v R [2011] VSCA 152

Cowling v R [2015] NSWCCA 213

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Franklin v R [2016] NSWCCA 319

Hoare v The Queen (1989) 167 CLR 348

MacDonald v R [2024] NSWCCA 240

Magnuson v R [2013] NSWCCA 50

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

R v Cattell [2019] NSWCCA 297

R v Daley [2010] NSWCCA 223

R v Gavel [2014] NSWCCA 56

R v Herring (1956) 73 WN (NSW) 203

R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

RvTodd [1982] 2 NSWLR 517

R v Van Ryn [2016] NSWCCA 1

R v Windle [2012] NSWCCA 222

Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267

Way v R [200] NSWCCA 131

Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629

Texts Cited:

D T Kenny, “The social dynamics and impacts of institutional child sexual abuse” (September 2017) 29(8) Judicial Officers Bulletin 70

Category:

Sentence

Parties:

Robert Elmer (a pseudonym) (the offender)
Director of Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
S Fraser (for the offender)
D Coulton (for the Crown)

Solicitors:
Circular Legal (for the offender)
Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2023/66156

Publication restriction:

Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) s 578A Crimes Act 1900 (NSW) there is to be no publication of any information that leads to the identifying of a child witness. Identifying information has been removed from this version of the judgment to comply with the statute

JUDGMENT – ex tempore revised

1. Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) and s 578 Crimes Act 1900 (NSW) there is to be no publication of any information or other material that identifies or is likely to lead to the identification of the complainant in this matter who was a child at the time the offences were committed against her. Given the relationship between the offender for sentence and his stepdaughter, when this judgment is taken out a pseudonym will be used for the name of the complainant and the offender.

Introduction

2. Elmer was charged with eight serious offences said to have occurred between 2004 and 2011 in the Wollongong area. He said he was not guilty of those charges and came to trial at Wollongong District Court on 10 February 2025.

3. The jury, it turned out of 11, found him not guilty of:

• Count 1 – Commit act of indecency of a child under 10: Crimes Act, s 61O(2).

• Count 2 – Indecent assault with a child under the age of 10: Crimes Act, s 61M.

• Count 7 – Incite aggravated act of indecency child under 16 and under authority: Crimes Act, s 61O(1).

• Count 8 – Aggravated indecency of child 16 or over and under authority: Crimes Act, s 61O(1A).

4. Guilty verdicts were returned, however, on:

• Count 3 – Aggravated sexual intercourse child between the ages of 10 and 14: Crimes Act, s 66C(2).

• Count 4 – Incite an act of indecency with a child under 16 and under authority: Crimes Act, s 61O(1).

• Count 5 – Aggravated indecent assault of a child under the age of 16: Crimes Act, s 61M(1).

• Count 6 – Aggravated sexual intercourse with a child between 10 and 14: Crimes Act, s 66C(2).

5. Elmer must have the full benefit of those acquittals. A real issue at trial for Counts 1 and 2 was whether the complainant was aged under 10. There was no alternative count, and there was some vagueness in the evidence about when the alleged event was said to have occurred. As to Counts 7 and 8, the complainant's evidence showed some confusion about what had occurred on either of the occasions said to found those counts. Her evidence appeared to conflate two incidents such that her allegations lacked any precision.

6. Elmer is therefore before the Court today for sentence on Counts 3, 4, 5 and 6.

7. I have to proceed to sentence in accordance with the jury verdicts. When the judge prepares a matter for sentence, they have to determine the appropriate facts consistent with the jury's verdicts. There was no difficulty in my doing so, so far as Counts 3, 4 and 6 were concerned, but when I reviewed the transcript of the proceedings, I could find no evidence in relation to Count 5.

8. Count 5 was founded on an allegation Elmer touched the child's thighs and vaginal area. The complainant did not mention any of those acts when she gave her evidence before the jury.

9. I sought the assistance of counsel this morning. Count 5 related to an allegation that while in a car at Bombo; the same incident the subject of Counts 4 and 6. I went to the elements document that was given to the jury. The Crown case for Count 5 was set out in that document. It notes - “Allegation – He touched her thighs and vaginal area.”

10. That specific allegation - touching the child’s thighs and vaginal area, was put to Elmer in his record of interview with police. He made a general denial. The question itself could not be evidence of the fact the offence occurred.

11. In cross-examination of the complainant, Mr Fraser, counsel for Elmer, put a proposition to the complainant about the incident at Bombo in general terms stating that the events at Bombo and the touching did not happen; but that proposition was not specific to a count.

12. I am now being asked to sentence consistent with a jury verdict where there are no facts to support that finding of guilt! I have no power to stay proceedings after a jury verdict. No application was made to direct a verdict of not guilty on the basis there was no evidence to support the count. Were I to impose a sentence, I would have to make a finding of fact and a finding as to the seriousness of the offence. An allegation put in the record of interview could not found such findings – any finding.

13. A trial judge must respect the jury's verdict, but in the circumstances here, were I to impose a sentence, it would have no evidential foundation. Were the conviction to be overturned on appeal this could lead to my being required to revisit the sentencing determination as occurred recently in MacDonald v R [2024] NSWCCA 240.

14. In all the circumstances, whether it be technically correct, the expedient course so far as Count 5 is concerned is to deal with the matter as an exceptional case under s 10(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW). I note there was a finding of guilt by the jury, but no penalty is required and there should be no conviction entered.

15. I must sentence for Counts 3, 4 and 6.

Maximum penalty

16. The offences for sentence carry the following maximums:

• Counts 3 and 6 – 20 years imprisonment: Crimes Act, s 66C(2)

• Count 4 – 5 years imprisonment: Crimes Act, s 61O(1).

17. The maximum penalties are important guides to the exercise in my sentencing discretion. While I sentence according to sentencing standard that I apply today, I sentence according to the penalties that applied at the relevant time. They conveyed parliament's view of the relative seriousness of each offence.

Facts for sentence

18. Elmer was born in 1977. The complainant was born in 1994 and turned 10 in 2004 and 16 in 2010. Elmer was her stepfather.

Count 3 – Aggravated sexual intercourse child aged 10 to 14

19. The offence took place in the family home when the complainant was 10 or 11. The complainant was sick in bed with fever. She woke up to the offender sitting next to her bed with his hands underneath the blanket touching the outside of her underwear. He touched her pubic bone and then moved down moving his fingers in a circular motion on the top of her vagina.

20. He then went underneath her underwear and did the same thing and then, the offence for sentence, he inserted a little bit of his finger into her vagina. She said it was not all of it. This incident took "probably about 30 seconds to a minute”. No words were spoken. He then walked out of her room. She was left shocked and scared. She could not move. Her sister was in her own bed sleeping. The complainant said she did not say anything to anyone because she was scared.

Count 4 – Incite aggravated indecency child under 16 under authority

Count 5 – Aggravated indecent assault of a child under 16

Count 6 – Aggravated sexual intercourse child aged 10 to 14

21. Counts 4, 5 and 6 are said to have occurred when the offender took the complainant then aged 10 or 11 for a drive to a local beach. The two were alone in the vehicle. Elmer parked the car. He got a porn or ‘girlie’ magazine out of the glovebox. He took his penis out and played with it. He told the complainant to watch him. He then told her to put her hand and move it up and down.

22. On day 1 she told the jury she remembered there was a lot of pre-cum and then he told her to put it in her mouth. She said she would not put it in her mouth. He then put a condom on his penis and put the penis in her mouth. She felt him ejaculate in the condom which was in her mouth. He took off the condom and threw it out the window. They left and went home.

23. On day 2 of the trial she was asked: "Q. You said yesterday the accused asked you to touch his penis. Did you in fact touch his penis?" She answered, "Yes."

24. Her evidence did not reveal any matters relating to Count 5.

A proportional sentence

25. A sentence must be proportionate to what was done. An assessment of the objective seriousness of an offence is essential in setting the parameters of an appropriate sentencing outcome. For sentencing, imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances: Hoare v The Queen (1989) 167 CLR 348 at [354]; Way v R [200] NSWCCA 131 at [125]. The objective seriousness of a particular offence must be determined in the light of those facts and circumstances.

26. I start this part of the sentencing exercise with one fundamental principle in mind. Every act that involves the sexual exploitation of a child is serious. There is an absolute prohibition on sexual activity with children which the Courts treat seriously and will punish on behalf of the child victim, and the community in general. The principle is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1. This principle is one important reason for the high maximum penalties fixed for such matters at the time and now.

Sexual intercourse offences

27. There is no hierarchy of seriousness of the kinds of sexual intercourse. The nature of the sexual intercourse must be considered, but it does not necessarily determine objective seriousness. This exercise is a good indicator of why judges follow that principle. Each act of intercourse here involved the physical violation of a child. The acts could be regarded as equivalent, but there are aspects of, and contexts to, the acts of intercourse that require differentiation.

28. For Count 3, where “under authority” is an element of the offence, it must not be double-counted: Franklin v R [2016] NSWCCA 319 at [67]-[76]. I must take into account take the penetration was partial and occurred for under a minute.

29. In the Crown's submissions, reference was made to Leeming JA’s decision in Cowling v R [2015] NSWCCA 213 at [16], citing R v Daley [2010] NSWCCA 223. I note that in the paragraph following that set out in the submissions his Honour noted “in every case what matters is the context in which the assault occurs.” Accordingly, while the offence is committed by the fact of penetration, t the duration or shortness of the duration must have some impact on an assessment of objective seriousness.

30. All aspects of the offending are taken into account, including; context, the degree of physical interaction between the child and the offender (and what is actually involved in the act of penetration). As all aspects of the offending must be considered this can lead to differentiation in sentence because of the length of time over which the event occurred. That does not in any way underestimate the psychological impact of any act of unlawful penetration of a child's genitals, or any penetration of a child.

31. There was an age difference. He was then aged 27 to 29. She was 10.

32. He was her stepfather. He had assumed the responsibility of caring for her.

33. The offence obviously involved the breach of a position of trust given the relationship between the offender and the victim, but I note in particular that caution is required here, because there is a risk of erroneously giving undue weight to an abuse of a position of trust aspect of an offence where acting under authority is an element of the offence. While they are different concepts, they are so closely related in the circumstances here they cannot, and will not, be double counted.

34. The events left the child scared and fearful. The offence occurred in her own home, in her own bed where she was entitled to feel safe and secure and where she should not have been vulnerable to such abuse.

35. The offending was brief, although preceded by other uncharged crimes for which he cannot be sentenced, and only partial penetration was achieved. There was no pain or physical harm occasioned as opposed to psychological discomfort which was, on the material before me, lasting. The offence is committed by the act of penetration itself but as the degree of physical intrusion is an important measure, this offending tends towards the bottom of the range of what are serious offences to start with.

36. In relation to Count 6, as with Count 3, where under the authority is an element of the offence, it cannot be double counted: Franklin v R. This was an intrusive act that went to conclusion; ejaculation. The use of a condom avoided only a small amount of potential harm, but this offence was on any measure a degrading act committed by an adult on a child. The complainant was at the lower end of the age range covered by the offence.

37. Again, while not strictly mitigatory, a number of acts commonly associated with crimes of this type were absent, there being no verbal or physical threats, and no allegations of pain. Further, the act occurred while the child was isolated in his car. She was vulnerable. She had nowhere to go, and she was dependent on him to drive her around. The age difference and the relationship were also relevant. Her will was overborne. She was instructed to do what she did, and what he did left her scared and disgusted.

38. It was a serious example of its type.

39. Those other aspects to which I have just referred relate also to Count 4, the incite offence. She was then under his authority which equates here with the abuse of trust and must not be double counted. He told her what to do and how to do things. He directed her to masturbate his penis. There was skin on skin contact. It too was a serious example of its type.

Other factors

40. The trial was conducted expeditiously. The administration of justice was facilitated and will be taken into account: Crimes (Sentencing Procedure) Act, s 22A. That said, the complainant still had to give evidence, and her cross-examination had the not unusual impact as she explains in her Victim Impact Statement. Elmer is not to be punished for exercising his right to trial, but he does not get the benefits that are often accorded offenders who make early admissions of guilt and accept responsibility for their actions.

Victim impact

41. A Victim Impact Statement attests to the personal harm suffered by the victim as a direct result of the offence. I have no difficulty in accepting the heartfelt statement that was made to the Court. There are some aspects of it that do not strictly fit within s 28 Crimes (Sentencing Procedure) Act but for sensible and practical reasons no objection was taken. I focus on the matters that do relate to the relevant section.

42. There is a vast diversity of sexual abuse experiences which means that the outcome of the sexual abuse case will also be diverse: D T Kenny, “The social dynamics and impacts of institutional child sexual abuse” (September 2017) 29(8) Judicial Officers Bulletin 70.

43. Few generalisations can be made but what was said seems to accord with the sort of response one would expect in all the circumstances. She said, "There's no area of my life that [these matters haven't] had an impact on. I carry guilt and shame for not coming forward sooner”.

44. She speaks of the difficulty she has maintaining relationships with lovers and friends. She notes her current medical diagnosis but there is no medical material before me to support a direct connection with the abuse. She says that when she has a bad day things that were done in the past by the offender resurface. Sometimes she cannot get out of bed or go to work, and she has lost a job as a consequence. As to the trial she said, "Giv[ing] evidence brought up so many things I wanted to forget. I had to speak about very private and traumatic experiences in front of strangers”.

45. She noted, "The level of detail in the media articles felt like another violation ..." She says, "As a [child], I thought what he was doing was normal ..." She is now a “very protective parent”. She speaks about her weight loss. She concludes,

"Now that he is being held accountable, I feel I can finally start to move on. It's a relief after being told for so long that I wouldn't be believed and that he is finally being held accountable for what he did. What he did used to define me, but it's not who I am."

46. At the relevant time I could not find that Elmer had any criminal antecedents. I did however deal with him for a subsequent matter and I sentenced him in 2020 for a use carriage services offences: [Redacted]. He was released on a Federal Recognizance in February 2022, but he was arrested for this matter soon after, in February 2023. He spent 178 days in custody until guilty verdicts were returned.

47. He was then returned to custody after a detention application, which attracted the provisions of 22B Bail Act 2013 (NSW). He is entitled to have his prior good character taken into account as he was of good character until he started offending against this child. The exceptions in s 21A(5A) Crimes (Sentencing Procedure) Act do not apply here.

The case for the offender

48. No evidence was given by Elmer at sentence. He maintains his innocence. He was raised in a warm and loving family. His family are here today. I have a letter from his other daughters. They believe and support him.

49. His personal history is uncontroversial. It has differed little from the material that was before me in the early sentencing proceedings. In relation to his history, I gratefully adopt Mr Fraser's summary in his written submissions: MFI 2, pars 40-44.

48. Elmer’s parents were born overseas. They came to Australia just before he was born. They were supportive. His mother was a home parent. He was raised to strict orthodox beliefs. He attended school until Year 12. He did not excel but there were no particular issues. On leaving school he found work. He has been employed for most of his adult life. After his release he was able to obtain employment. He is presently working in custody.

49. His first significant relationship was with the mother of the complainant. They had several children together. That relationship was relatively stable until behaviour, on his part, caused a breakdown and he was asked to leave. He describes, and this is reflected in his record and all the material before me, a decline in his mental health at this point. He resorted to the use of alcohol and drugs as a means of self-medication. He still remains devoted to his children, and the most challenging aspect of his incarceration is that he is missing them.

50. I have a report from a respected forensic psychiatrist, Dr Thomas Dornan. A copy will be sent with the warrant. Dr Dornan's report is comprehensive. He notes that the fact that Elmer denies this offence may complicate both treatment and assessment of his prospects, but overall Dr Dornan, at par 97, has concluded, taking into account dynamic risk factors and protective factors, that Elmer’s overall risk of sexual recidivism is low.

51. There were no problematic factors at the time of the offending. He noted that Elmer’s decline in mental health and drug use occurred after these events. It would appear, from Dr Dornan's assessment, that those problems are no longer part of his clinical profile, or recent criminal profile, and he has shown some significant insight into those more recent problems: par 72.

52. Judges do not ignore the lived experience of gaol. There will be challenges. Gaols are difficult places. They are violent places. They place a psychological strain on any inmate, and this is particularly so for those charged with sexual offences against children who are subject to potential victimisation from other inmates.

53. In regard to his current mental health stability, Dr Dornan postulates at par 98.16, he “remains vulnerable despite his current improvements”. In the long-term Dr Dornan believes that it is highly unlikely that Elmer will be able to enter gaol prison programs; although he may be able to access a denier's program which is sometimes offered. Elmer’s treatment for sex offending is most likely to take place in the community rather than in custody. Those matters are important and allow me certain insights into the man for sentence and his prospects, to which I will later refer.

Delay

56. The offences occurred many years earlier. He was a much younger man then. Sentencing for stale crimes calls for a considerable measure of understanding and flexibility: R v Todd [1982] 2 NSWLR 517 at [519]. This is particularly so if, as appears here, the offender ceased offending without formal intervention.

57. Sometimes delay in bringing the matter before court can operate to an offender's advantage as it can show their capacity for rehabilitation. A nuanced approach is required here because obviously Elmer offended after this matter. But he has been able to demonstrate in his times in the community, and while on remand, that he does have some capacity to rehabilitate. And, he did not pursue offending for a period. He has a capacity to lead a pro-social life, and as Dr Dornan says, there are many protective and positive factors in his profile.

58. There are no general principles on how a court deals with delay. As with most sentencing principles, they can point in different directions, but every offender is entitled to have evaluated in their favour any factor deriving out of their conduct or the circumstances of the case that reflects to their advantage, and I will do so. But on the other hand, until he was convicted of these offences the offender escaped justice and enjoyed life free of opprobrium or punishment for the crimes that he committed against his stepdaughter: Magnuson v R [2013] NSWCCA 50 at [62]; R v Cattell [2019] NSWCCA 297.

59. Not every question in sentencing involves a choice between extremes. Neither human behaviour nor the fixing of sentences is so simple: Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [22]. I will take into account those competing principles on delay in an attempt to synthesise them in my ultimate sentence.

Structure

60. I am required to impose, indicate an appropriate sentence for each offence here, Counts 3, 4 and 6. I have to structure the sentence such that the overall sentence is just and appropriate to the totality of the offender's crimes: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63].

61. It is not submitted that the principles of Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 apply here.

62. I am sentencing for two events, and I am sentencing for specific crimes within those two events. Separate punishment is required for each matter. There is no discount for multiple offending: R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]. There were discrete acts of criminality but even in the Bombo incident, there were matters that overlapped justifying a considerable degree of concurrence as between Counts 4 and 6. Overall, one simply does not add each sentence one on top of the other. That can lead to a result that is not just in the circumstances.

Special circumstances

63. There is room here for a finding of special circumstances and a reasonably significant one. The offender's prospects of not reoffending will be improved if he is supervised, treated and assisted while in the community. Those prospects work to prevent further offending which will have a community benefit. He will need help adjusting to normal community life on release. His various problems in terms of his mental health difficulties, while under control, will also need to be taken into account. In doing so, as the Crown submit however, I must be mindful of the requirement that the minimum period for which he should be imprisoned must properly reflect the gravity of his offences and all the purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

64. A proper sentence marks the Court's view of the seriousness of each crime and each of the crimes for sentence. The sentence should let other wrongdoers know what will happen to them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.

65. Importantly, in matters such as this the sentence has to reflect the community’s abhorrence of this type of crime and seek to vindicate the dignity of the victim of sexual offences, a child who was effectively helpless with her stepfather when these offences were committed. The community expects judges to impose significant penalties. While there are reasons here to mitigate a sentence in its structure, a considerable sentence must be imposed.

Orders

66. The formal Orders of the Court are, in relation each sentence:

• For Count 3 – I indicate a sentence of 4 years imprisonment.

• For Count 4 – I indicate a sentence of 2 years imprisonment.

• For Count 6 – I indicate a sentence of 6 years imprisonment.

67. There will be a sentence of imprisonment of 8 years. There will be a non-parole period of 5 years. The sentence will commence on 20 August 2024. The offender will be eligible for parole on 19 August 2029. The balance of the term of 3 years will commence on 20 August 2029. The total sentence will expire on 19 August 2032.

68. In relation to Count 5, I note the jury's finding of guilt. I deal with the matter pursuant to s 10(1)(a) Crimes (Sentencing Procedure) Act.

69. A copy of Dr Dornan's report will go with the warrant.

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Amendments

30 September 2025 - Subheading added to catchwords.

Decision last updated: 30 September 2025